255 F. 451 | 8th Cir. | 1918
Lead Opinion
Suit attacking validity of will subject to the laws of the state of Missouri. From a judgment on a directed verdict at close of plaintiffs’ evidence upholding the will, plaintiffs bring writ of error.
The peremptory instruction is attacked on the three grounds that the legal execution of the will was not so clearly shown as to justify a withdrawal of that question from the jury and that the evidence of both mental incapacity and pf undue influence was sufficiently substantial to require the finding of the jury upon each of those issues.
“Every will shall be in writing, signed by the testator, or by some person, by his direction, in his presence, and shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator.”
A distinction is to be observed between a challenge of the paper presented as the will on the ground of fraud, because it was not the paper intended to be executed, on account of substitution, alteration, or deception, and between a challenge of it because not executed in the manner required by the statute. Here the sole attack in this respect is that the statutory requirements were not met. It is therefore a question of what the above statute requires and what was done in this instance. Where the signature is by proxy, as here, the statute requires that it be “by some person by his direction.” The obvious construction of “by his direction” is that the testator shall by word or action clearly indicate to the proxy a desire to have his name signed to the instrument. The statute requires no particular expression or acts. Any signifying the above desire suffice. St. L. Hosp. Ass’n v. Williams, Adm’r, 19 Mo. 609, 612. Here the testimony is that the testatrix, who was blind, in the presence of the two witnesses and her attorney, who had drawn the will, suggested that a Mr. Hamilton he requested to sign for her. One of the witnesses endeavored to1 find Mr. Hamilton and ascertained that he was not in town. There was then some discussion between the attorney and testatrix, resulting in the suggestion that Dr. Ford be called. The witnesses are not clear as to the details of this discussion; one of them stating that the attorney suggested Ford, and asked the testatrix if he would be acceptable ; the other stating that either the attorney or the testatrix made the suggestion. Both are clear that Dr. Ford was acceptable, and one of them went for him and brought him. Ford, who was a witness hostile to the will, testified that he had no> knowledge of being wanted to sign for the testatrix until one of the witnesses came for him; that the attorney, in the presence of the witnesses and testatrix explained that he was wanted to sign her name to a paper which was her will, because she could not do so; that he did so without hesitation. Dr. Ford was the husband of the niece of the testatrix, who was a guest in their home at the time. There can be no question that all four men understood there in her presence at that time that Dr. Ford was carrying out the wishes of the testatrix. We think they were justified in so believing, and that the statute was in that respect fully met.
We are not impressed by the contention that it was necessary for the testatrix, after such signature, to acknowledge the paper as her will to the witnesses. Before Mr. Hamilton was sought, the attorney had, in the presence of the witnesses, stated to testatrix that he had her will, and asked if she desired the two persons present to witness it for her, to which she expressed, assent. He then stated that, as she was blind, it would be necessary to read the will. This he did to her and the two witnesses; testatrix requesting the rereading of that portion thereof which is the cause of the present suit. It was also later
“The witnesses must subscribe tbeir names in! tbe presence of tbe testator in order tbat they may not impose a different will on him. * * * ” Cravens v. Faulconer, 28 Mo. 19, 21.
“Of course, the word ‘presence’ necessarily includes knowledge of the act and acquiescence thereto upon the part of the testator.” Bingaman v. Hannah, 270 Mo. 611, 628, 194 S. W. 276, 281.
The prime reason for requiring the signatures to be attached in the presence of the testator is that he may have knowledge that the witnesses have actually signed the instrument he intends as his will. Therefore this protection is ordinarily afforded when, and only when, the witnesses are near enough to and within the view of the testator for him to gain this knowledge by observation. But how can this knowledge be gained by a blind person? Such a one has to rely upon touch and hearing. Together they would be little protection, as it would he easy to substitute papers in the presence of a blind person without his knowledge. There is but one way in which a blind person could gain that security which' the statute easily gives a normal person. That would be by writing his own will, signing it himself, and having it witnessed, all without letting it leave his own manual possession. This would mean that most blind persons, particularly if otherwise enfeebled, through lack of ability to write or through failure to exercise the above excessive degree of caution, could not make a valid will. Surely the Legislature did not intend.by a provision of this character to debar the blind from making wills. At the same time there was no intention to except the wills of blind persons from the statutory requirement.
The statute must receive á rational, practical construction, which will enable reasonably careful blind people to execute wills. The statutory “presence” certainly requires as much in the case of a blind testator
The claim that the matter of proper execution was for the jury is not well founded. The testimony was sufficient and undisputed. It is true that even undisputed testimony depends upon the credibility of the witnesses and may be disbelieved. But the credibility of the witnesses in such a situation as here is a question primarily for the trial judge. Whatever the rule may he in the Missouri state courts, the rule of the federal courts is that the court will by direction prevent a verdict which it would set aside as unsupported by substantial evidence. McGuire v. Blount, 199 U. S. 142, 148, 26 Sup. Ct. 1, 50 L. Ed. 125.
The matter of testamentary capacity is whether the testimony here reveals any substantial doubt as to this testatrix possessing that standard of mentality required by the settled adjudicated rule in Missouri. The entire testimony has been carefully read and considered. In our judgment it establishes beyond substantial question the capacity required by the Missouri decisions. Southworth v. Southworth, 173 Mo. 59, 73 S. W. 129.
A careful study of all of the evidence reveals no substantial testimonv of any undue influence.
The judgment is affirmed.
Dissenting Opinion
(dissenting). The majority opinion announces :
“In our judgment, the rule for a blind testator is the same as that which would be applied to him if he had sight. The execution ol the will now involved complied with the statute.”
With this statement I cannot agree. The statute requires that the will “shall he attested by two or more competent witnesses subscribing their names to the'will in the presence, of the testator.” 1 agree that “the statute would have been satisfied, had she [the testatrix] been able to see”; but, as stated in the majority opinion, “the prime reason for requiring the signatures to be attached in the presence of the testator is that he may have knowledge that the witnesses have actually signed the instrument he intends as his will.” I cannot agree
In Calkins v. Calkins, 216 Ill. 458, 75 N. E. 182, 1 L. R. A. (N. S.) 393, 108 Am. St. Rep. 233, the Supreme Court of Illinois, expressing the meaning of the phrase “in the presence of the testator,” says:
“An attestation is not in the presence of the testator, although the witnesses are in the same room and close to him, if some material obstacle prevents him from knowing of his own knowledge, or perceiving by his senses, the act of attestation.”
“In case of a blind person, his will would be attested in his presence if the act was brought within his personal knowledge through the medium of other senses. But whether a person is blind or can see, an attestation is certainly not in his presence if he has no conscious personal knowledge of the act and is merely told that it has been performed in another room.” Drury v. Connell, 177 Ill. 43, 52 N. E. 368.
In Page on Wills, § 214, it is said:
“(a) It has been held by some authorities that the act, if done so that it would be in the presence of one who could see situated in the place of me blind person, is done in the presence of such person.
“(b) A safer test, and one indorsed by the better line of authorities, is that the act must be done in such proximity to the blind person, that he can by means of his remaining senses know what is being done.”
In Underhill on Wills, § 196, in speaking of the meaning of the word “presence,” it is said:
“In order that a signing shall be in the presence of the testator, in the statutory sense of the word, he must be mentally conscious of what is going on about him. He must have the power to recognize the acts of the witnesses, if not by sight, then by and through the avenue of some other sense.”
In Ray v. Hill, 3 Strob. (S. C.) 297, 49 Am. Dec. 647, in speaking of the capacity of a blind man to make a will, the court says:
“If the witnesses to the will of a blind man attest and subscribe the will within the reach of the testator’s remaining senses, when he is conscious of what they are doing, and may, if he choose, ascertain that they are subscribing the same will that he had signed, the subscribing will be ‘in the presence of the testator.’ ”
The court further says:
“In the case of a blind man, the superintending control, which in other cases is exercised by sight, must be transferred to the other senses; and if they are. or may, at his discretion, be made sensible that the witnesses are subscribing the same will that he had signed, I should think it ought to suffice. * * * According to the evidence, the subscription by the witnesses was within two feet of the testator. Robinson says, ‘I think the testator knew what we were doing when we signed — he might have heard the scratching of the pen.”
It is solely a question as to whether or not the blind person knows what is being done. Not being able to see what is being done, the act must be done in such proximity to the testator that he “can by
If the statute were construed to require that the testator, after the reading of the document, should place his hand upon some portion of it as it rested upon a table in front of him while his signature was being wi'itten, and while the witnesses attached their signatures, it would in no manner furnish an obstacle to the execution of a will by a person deprived of sight. It would be as easy to execute it in such manner as in the manner shown by the testimony in this case. The only burden it would put upon the parties would he to have the table moved to the testator, or have the testator sit at the table with the witnesses.
I am afraid that the rule of the majority opinion will leave the blind, desiring to execute a will, to the mercy of designing persons, and inasmuch as this establishes a rule of law, not only applicable to this case, but to all other cases, I cannot concur in the majority opinion upon this point. .1 feel that at least it was a question for the jury, under proper instructions as to the purpose of the statute, to determine whether the acts done were such as to enable testatrix to be conscious of such acts in such detail as to furnish her the protection which the law provides.
I concur with the majority in holding that the “direction” that Ford attach the name of the testatrix to her will was proven, but for the foregoing reasons I do not believe that he attached such signature in the “presence” of testatrix.
Assuming (without reference to the facts in this case) that there ■was a conspiracy to substitute a will, there would not be the slightest difficulty in slipping a spurious document from the pocket of any of the parties as they walked from ihe testatrix to the adjoining room.
I concur in the conclusion of the majority that the plaintiff failed to establish by the testimony that testatrix lacked testamentary capacity.